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Illinois Dunesland Preservation Society v. Illinois Dep't of Natural Resources

October 14, 2009


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 2880-Elaine E. Bucklo, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge


Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois; it attracts upward of two million visitors in some years. The plaintiff, a nonprofit corporation that helped to create and continues to support the park, filed this suit under 42 U.S.C. § 1983 against state officials involved in its management and the state agency that operates the park, charging infringement of free speech. The agency was properly dismissed because states are not "persons" within the meaning of section 1983 and so cannot be sued under that section. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65-66 (1989). And because damages suits against state officials in their official capacity are deemed suits against the state, the claims against the defendant officials in their official capacity for declaratory relief were also properly dismissed because the plaintiff's only purpose in seeking such relief in this case was to establish liability for the past infringement of its rights so as to entitle it to dam-ages. Green v. Mansour, 474 U.S. 64, 73 (1985). Those officials are also sued in their personal capacity, however, and in that capacity are "persons" within the meaning of section 1983. But the district judge granted summary judgment in their favor; and so the entire suit was dis-missed.

The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled "Tips for Avoiding Asbestos Contamination at Illinois Beach State Park," the pamphlet recommends "commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park." It warns that "many pieces of asbestos have been tumbling along the shoreline for years," that "microscopic asbestos can be released from the sand when agitated," and that "disturbing the sand can cause asbestos to become airborne." And since "asbestos fibers can be found wherever beach sand can go," the reader is advised to "wash your whole body including hair, ears, and under fingernails. Pets should also be washed down prior to leaving the beach . . . . Take care when shaking out towels and blankets that may have come into contact with sand. Remove all beach clothing prior to entering your car or home. Launder beach clothing, blankets, and towels separately. Store shoes and other hard to clean items outside of the home."

The park's numerous display racks contain a variety of brochures and flyers selected by park officials. Some of these are produced by the park itself and are guides to the park or lists of nearby resorts. Some are maps; some, government warnings about pathogens. There are also brochures advertising such draws in the area as an amusement park, a mall, a petting zoo, a store that sells supplies for fishermen, and other sites that might interest tourists.

The beaches do contain asbestos fibers, possibly as a result of the park's adjacency to a site on which Johns-Manville once manufactured building materials containing asbestos; another potential source is beachfront homes that contained asbestos and long ago washed into the lake. But studies of the beaches by federal and state agencies have not found levels of asbestos sufficient to menace human health. U.S. Dept. of Health & Human Services, Agency for Toxic Substances and Disease Registry, "Health Consultation, Exposure Investigation Report on Illinois Beach State Park" (Oct. 19, 2007), IllinoisBeachStatePark(EI)HC101907.pdf; Illinois Dept. of Public Health, "Public Health Assessment, Asbestos Contamination at Illinois Beach State Park" (May 23, 2000),; see also University of Illinois, Center of Excellence in Environmental Health, "Illinois Beach State Park (IBSP): Determination of Asbestos Contamination in Beach Nourishment Sand" (June 20, 2006), glakes/coe/IBSP_Sand_Final_Report1_wo_App.pdf. (All these websites were visited on September 21, 2009.) The park's staff does try, however, to remove from the beaches material that contains or might contain asbestos.

The asbestos at the Illinois Beach State Park has attracted the attention of the media, e.g., Carol Marin & Don Moseley, "It's Not Child's Play; Material Containing Carcinogen Found This Week in Sand Castle at Illinois Beach State Park," Chicago Sun-Times, Aug. 2, 2007, p. 3 ("material containing asbestos, a known carcinogen, was found this week wedged in one of the most innocent symbols of summer: a sand castle at the water's edge of Illinois Beach State Park"); Dan Rozek, "More Asbestos Found at Zion Park," Chicago Sun-Times, July 2, 2004, p. 21; Dave McKinney, "State Agency Shuts Out Environmental Watchdog at Nature Sanctuary; Dunesland Group Recently Found Asbestos in Preserve," Chicago Sun-Times, July 31, 2003, p. 18; Douglas Holt, "State to Investigate Safety at Zion Park; Asbestos Fears Fuel Madigan Action," Chicago Tribune, July 3, 2003, p. 1. And until 2004 the racks displayed a "fact sheet," which is in the record, about asbestos in the park that had been prepared by state environmental and health agencies. But that year the supply of copies of the fact sheet ran out. The defendants say in their brief that they prepared and displayed new fact sheets in 2005 and again in 2006, but these are not in the record and we do not know what their content is or was. The fact sheet that is in the record acknowledged the presence of low levels of asbestos in the park's beaches but denied that they were a health hazard. It is as anodyne as the plaintiff's pamphlet is alarming.

Lawyers in federal appeals invariably frame their arguments in language taken from Supreme Court opinions. In this case, which involves a First Amendment issue, the lawyers have treated us to a barrage of unhelpful First Amendment jargon.

A "forum" in that jargon is a piece of public property usable for expressive activity by members of the public ("private speech," in forum jargon). The Supreme Court distinguishes a "traditional public forum" from a "designated public forum" and both from a "nonpublic forum." E.g., Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1132 (2009); Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001); International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983).

A traditional public forum is a street or park, or some other type of public property that like a street or park has long ("time out of mind," as some cases put it, or "from time immemorial," as others say) been used for expressive activity, such as marches and leafletting. A designated public forum, illustrated by a public theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Gilles v. Blanchard, 477 F.3d 466, 473 (7th Cir. 2007); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 565, 570-71 (9th Cir. 1984), is a facility that the government has created to be, or has subsequently opened for use as, a site for expressive activity by private persons. Usually, as in the case of a public theater, it is available only for specified forms of private expressive activity: plays, in the case of a theater, rather than political speeches. Such limitations are permitted; the public owner of a theater need not throw it open for political rallies even though it is physically capable of being so used. But the owner is not allowed to discriminate among the plays performed in the theater on the basis of the ideas or opinions that the plays express, as appeared to have happened in the Southeastern Promotions case.

The third category-the "nonpublic forum"-consists of government-owned facilities like the Justice Depart-ment's auditorium that could be and sometimes are used for private expressive activities but are not primarily intended for such use. The government can limit private expression in such a facility to expression that furthers the purpose for which the facility was created. E.g., Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666, 677-80 (1998); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 804-806 (1985).

Some decisions recognize a fourth category, a variant of the second, variously called a "limited designated public forum" (what Shakespeare's Polonius would have called "a vile phrase"), a "limited public forum," or a "limited forum." Pleasant Grove City v. Summum, supra, 129 S.Ct. at 1132; Perry Education Ass'n v. Perry Local Educators' Ass'n, supra, 460 U.S. at 46 n. 7; Good News Club v. Milford Central School, supra, 533 U.S. at 106-07; Gilles v. Blanchard, supra, 477 F.3d 466, 473-74; Nurre v. Whitehead, 2009 WL 2857196, at *4 (9th Cir. Sept. 8, 2009); Steinburg v. Chesterfield County Planning Comm'n, 527 F.3d 377, 384-85 (4th Cir. 2008); Bowman v. White, 444 F.3d 967, 975-76 (8th Cir. 2006); Husain v. Springer, 494 F.3d 108, 127-28 (2d Cir. 2007). The terms denote a public facility limited to the discussion of certain subjects or reserved for some types or classes of speaker. In Gilles it was an open space in a state university in which members of the university community and their guests-but not uninvited outsiders-were allowed to give talks.

It is difficult to see what difference there is between such restrictions and the selection that the director of a state theater has to make among theater groups clamoring for access to the stage. Indeed it is rather difficult to see what work "forum analysis" in general does. It is obvious both that every public site of private expression has to be regulated to some extent and that the character of permitted regulation will vary with the differences among the different types of site. Street demonstrations have to be regulated to prevent blocking traffic, and the use of a state theater has to be regulated to ration the use of a limited facility and maintain quality, and obviously the regulations will be very different. The constant ...

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